### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 22

- 00508

- CR

Joel Edward Johnson , Appellant

v. The State of Texas, Appellee

FROM THE 27TH DISTRICT COURT OF BELL COUNTY NO. 80271 , THE HONORABLE JOHN GAUNTT , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Joel Edward Johnson challenges his convictions for two counts o f aggravated
sexual assault of a child

. See T ex . P enal Code § 22.021(a)(2)(b). B ecause Jo hnson had previ ously been convicted of a sexual assa ult offense , the trial co u rt assessed punishment at the mandatory sentence of life imprisonment and ordered the sentences to run concurrently. See id. § 12.42(c)(2) (enhancing punishment for aggravated sexual assault to life imprisonment when defendant has been previously convicte d o f sexual assault offense) . In three issues, Johnson
contends that th e trial court erred when it permitted specific fac ts of his previous offense to be presented during the guilt

- innocence phase of trial, when it failed to hold a n Articl e 38.37 hearing before allowing the presentation of the extraneous of fense evidence as required by the
Code of Criminal Procedure , and when it admitted the full video recording of the forensic
interview of the victim

. Based on the a n alysis below , w e affirm the trial cour t’ s jud gment of
conviction.2 BACKGROUND 1
Johnson was charged with three counts of a ggrava t ed sexual assault of a child and one count of indecency with a child. He was convicted o n Counts 2 and 4

— a ggrava t ed sexual
assault of a child by penetration of t he c hil d ’ s sexual organ with defendant ’ s finger

. Count 1 , alleg ing a ggravated sexual assault of a child by making contact with the child ’ s sexual organ
with defendant ’ s mouth , and Count 3 , alleging indecency with a child by conta ct by cau s ing the
child ’ s hand to touch def endant ’ s genitals , did not result in convictions but the related facts are relevant to understanding the evidence presented at tr i al and the i ssues presented here

. The child
named in all four counts was Johnson ’ s live

- in girlfriend ’ s daug hter , Amy

. 2
A my ’ s mothe r testified that while getting ready for meet

- the

- teac h er night at her
children ’ s school on August 16, 2018, Amy , who was nine years old at the time, told her that she woke up with out her “ Pull

- up ” on. This prompted her mother to ask Am y if anyone , includ ing
Johnson , was tou ching her

. Amy ’ s mother testified that Amy communicated to her that Jo hnson
had touched her vagina with his mouth and fingers. Amy ’ s mother did not initially believe her
and did not report the allegations to t he Dep artment of F amily and Protective Services ( “ Department ” ) or the police. Amy ’ s t e acher testified that on September 5, 2018, Amy made an outcry to her
about Johnson touch ing her “ private areas ” with his fingers and mouth and that Amy explained

1 We recite only the relevant facts necessary to resolve the presented issues.

2 To protect t he priva cy of the minor vic tim , we will refer to her by t he pseudonym , Amy, and we will refer to her mother, brother , and teacher by their relationship to her rather than by name

. See Tex. R. App. P. 9.10(a)(3).3 she ha d told h er mother but her mother had not done anything about it

. Anoth er teac h er too k Amy to the princip al to file a report with the Department

. Ashley L omas , a Child ren ’ s Advocacy Cente r interviewer , test ified regarding the
forensic intervi ew that she conducted wit h Amy in September 2018. Lom as testified that Amy
told her that once or t wice a week for three years , J ohnson would touch her with his mouth and fingers and have her touch his penis

. A fter defense counsel unsuccessfully o bjected to the use o f
the word “ penis ” b ecause it was not said during the interview, Lomas further explained that Amy
h ad descri b ed her hand being placed on a wet , squishy , cylindrical object that had a metal ring in
i t

. Amy drew a picture for Lomas of the ring that she was describing , and that picture was
admitted as evidence at trial

. A photo of a penis with two p iercin gs had been previously
admitted , and Amy ’ s mother had tes tified that it was a photo of Johnson ’ s penis that he had sent
to her.
Lomas testified that durin g the interv iew Amy had demonstrated how Johnson
had touched her wi th his fingers and mou th usi ng male and female anatomical dolls. Amy told
Lomas that h er mother had told her that if she said n one of the touchin g happened that it would only be a “ little white lie. ” Lomas had asked Amy to descri be the difference between a truth and
a lie and testi fied that Amy underst ood what both meant. Lomas also testified regarding the f orensic interview s h e co nducted with Amy ’ s brother. The brother told Lomas that he did not bel ieve Amy and that he and Amy had made a plan to get Johnson out of the hous e. Lo mas testified that Amy ’ s brother demonstrated “ red flags , ” showed signs of “ coac hing , ” and made con t radictory statements during the interview. Amy ’ s brother tes tified that he originally told Lo m as that Amy was lying because he wanted the4 whole fami ly to stay together

. The brother testified that short ly before the trial he chose to

“ come out with the t ruth, ” which he testified was that Johnson had also sexually a bused him

. Amy , who was thirteen at the time of t he trial , testif ied that Johnson had touche d
her “ private area , ” which she explained meant “ mostly [ her ] vagina , ” under her clothes weekly.
S h e was able to name the object with the ring that s he had refer red to in the in terview as
Johnson ’ s penis and described the ring as a piercing. She testifi ed tha t Johnson had made her touch his penis on ce. She did not mention Johnson touching her “ private are a ” or “ vagina ” with
his mouth and instead testified he had only touched he r there with his fingers.
The State presented , and the trial court admi tte d, the entire recorded forensic
interview over Johnson ’ s objections

. In the roughly hour

- long video , nin e - year - old Amy is
inter viewed by Lomas about her outcries a gainst Johnson. T he video corroborated the testimony of Lomas regarding the substance of th e inte rview.
After cross

- examination, t he State a lso presented evidence of an extraneous
sexual offense of which Johnson had been convicted i n Indiana ; the judgment fro m that
convict ion ; testimony from Phillip Wayman, the investigator who was present at Johnson ’ s interview and at the he aring at which Johnson pleaded guilty for the offense ; and testimony of
the victim of that prior offense , who h ad been fourteen at th e time of the offe nse
. Defense
counsel made a series of unsuccessful objec tions to the evidence presented regarding Johnso n ’s prior convictio n. The State then r ested. No defense witnesses were called.
A fter hearing all the evidence , t he jury acquitted Jo hnson o f Counts 1 and 3 but
convict ed him of Counts 2 and 4

— the two aggravated sexual assault of a child by penet ration
offenses

. The trial court sentenced Johnson to the stat utorily mandated sentence of life5 imprisonment d ue to Johnson ’ s prior sexual offense conviction , s ee Tex. Penal Code § 12.42(c)(2) , and ordered the sentences to run concurrently.

STANDARD OF REVIE W
We review t he trial court ’ s decision to admit or exclud e evidence , in cluding
whether h earsay is admiss i ble under an exception , under an abuse of discretion standard

. Coffin
v. State , 885 S.W.2d 140, 149 (Tex. Crim. App. 1994 )

. A trial court abu ses its d iscretion when its decision “was arbitrary or unreasonabl e.” State v. Mechler , 1 53 S.W. 3d 435, 439 (Tex

. Crim. App. 2005). We will affirm the trial court ’ s decision as long as it was within the “ zone of reasonable disagreement

. ” Id. “ If the ru lin g was correct on any theory of law applicable to the case, in l ight of what was before the tri al court at the t ime the ruling was made, the n we must uphold the ju dgment

. ” Sauceda v. State , 129 S.W.3d 116, 120 (Tex. Crim. App. 200 4)

. Even if
evidence is e rroneo usly admitted, we will not reverse unless the error affected the appellant ’ s

s ubstantial rights. See T e x . R. A pp . P. 44.2(b ) (establ ishing that , for non - co nstitutional error s , “[a]ny other error, defect, irregularity, or variance that does not affect subst antial rights must
be disregarded ” )

.

DISCUS SSION Extraneous Offense E vidence In his first two issues on appeal, Jo hnson cont end s that th e trial court err ed whe n it permitted specific fac ts of his previous offense to be presented during the guilt

- innocence phase of trial and when it failed to hold a n Articl e 38.37 hearing be f ore allowing the presentation
of evidence of his prior co n viction as required by th e Code of Criminal Procedure

.6 U nder Articl e 38.37 of the Code of C riminal Procedur e , “ evidence that the defendant has committed a separate [ sexual assault offense] may be admitted in the trial of an alleged [sexual assault ] offe ns e
. . . for any bearing th e evidence has on relevant matt ers, including the character of the defendant and acts performed in conformity with the character of
the defendant. ” Tex. Code Crim. Pro c. art. 3 8.37, § 2 (b)

. Article 38.37 requires that before t he
extraneous offense eviden ce may be presented , the tr ial judge must “ (1) d etermine t hat th e evidence likely to be a dmitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable do ubt; and (2) conduct a heari ng out of the presence of the ju ry for that pu rp ose
. ” Id. § 2

- a
. I n Johns on ’ s first issue on appeal , he co ntends that altho ugh Articl e 38.37 of the
Code of C riminal Procedure allows admission of evidence of extraneous off en ses under
circumstances that a pply to this case , the evidence should be limi ted to only the existence of t he

extraneous o ffense and does not allow for the a dmi ssi on of e vidence regarding the de tails of the
offense. The State contends that this issue has n ot been preserved. Assuming w ithout deciding
that this issue was preserved at trial, we conclude that the trial court ’ s admission of de tails regarding the e x traneous offense was not an ab use of discretion because Article 38. 3 7 does not include such limit. See i d. § 2 (b) ( allowing for admission of evidence that defendant has
committed separate sexual offense against child victim “ for any bearing the evidenc e has on relevant matters, including the character of the de fendant and acts performed in c onformity with
the character of the defe ndant ” ) ; Robisheaux v. State , 483 S.W.3d 205, 219 (Tex. App.

— Austin 2016, pet. ref’d) ( affirming admission of extraneous offense evidence under Article 38.37 when
admitted evidence included previous victim ’ s detailed testimony of sexua l offenses com mitted against her by appellant)

. Article 38.37 does not state th at the “ evidence ” is limited to a7 judgment , and jus t as Johnson has co nceded on appeal that he could not provi de any authority in support of his contention otherwise, we also could not find any suc h auth ori ty. Thus, we overrule his first issue. See Hodge v. State , 500 S.W.3d 612, 623 (Tex. App.

— Austin 2016, no pet.) ( concluding that appellant was not prejudiced by trial court ’ s refusal to sever cases because
the detai ls of each child victim ’ s test imony would have been admissible in each other ’ s sev ered

cases under Article 38.37).
In Johnson ’ s se cond i ssue on appeal , he contends that th e trial court erred when it
faile d to hold an Article 38. 3 7 hearing. See Tex. Code Crim. Proc. art. 38.37, § 2

- a ( requiring trial judge to conduct hearing out of presence of jury for purpose of determining whether “ the
evidence like ly to be admitted at trial will be adequate to support a finding by the jury that the
defendant committed the separate offense beyond a re asonable doubt ” ). The State contends that
this issue has not been preserved. To preserve a claim for appellate review, ther e must ge nera lly be a timely, specifi c obj ection that comports with the complain t on appeal as w el l as an adverse ruling from

t he tr ial court. See Tex. R. App. P. 33.1(a); Clar k v. State , 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (explaining that com plai nt on app eal must comport with object ion a t trial ). Further, the object ion must state the rele v an t grounds for the complaint “ with sufficient specificity to
make the trial cour t aware of the complaint, unless the specific grounds were apparent from th e

co ntext

. ” Tex. R. App. P. 33.1 (a)(1)(A)

. Her e, def ense counsel made no obje ction to the t rial

cour t not holding a n Article 38.37 h ea ring. Thus, we conclude that this issue has not been preserved for review. See Corporon v. State , 586 S.W.3d 550, 560 (Tex. App.

— Austin 2019, no pet .) (holding that complaints regar din g A rticle 38.37 hearing requ irem ent must be preserved for
review with timely specific objection)

. Because th is complaint w as no t preserved for appellate8 re view, we do n ot rea ch t he merit s of Johnson ’ s second issue

. See Ford v. Sta te , 305 S.W.3 d
530 , 532 (Tex. Crim. A pp. 200 9) ( explaini ng t hat i f issu e has not been p reserve d f or appeal , court of appeal s should not address me rits of that issue )

.

Forensi c Intervie w Video
In his final issue, Johnson contends that the trial court erre d wh en it admitted the videotaped interv iew o f A my
. Jo hnso n contends t hat the video contained i nad missible hearsay

statement s. Hearsay is an out of court statement that a party off ers to prove the truth o f the

matter as serted

. Tex. R. Evid. 801(d). Unless an exception applies, hearsay is generally
inadmissible

. Id. R . 802.
The State responded to Johnson ’ s hearsay objection , both at trial and on appe al,
that the video was admissible un der t he rule of optional complet eness , which state s: If a party introduces part of an act, declaration, conversat ion, writing , or recorded statement, an adverse part y may inquire into any other par t o n t he same subject. An adverse party may a lso intro duce any other ac t, declaration, conversation, writing, or recorded statement that is necessary to explain or allow th e trier of f act to fully understand the part offered by the opponent. “Writing or re cor ded statement” incl udes a deposition.

Id. R. 107

. Specifically, the State contends that defense counsel attacked Amy ’ s credibility so thoroughly that t he entire video became admis sible

. S ee B ezerra v. State , 485 S.W.3d 133,
142

- 43 (Tex. App.

— Amarillo 2016, pet. ref’d) ( holding entire forensic interview recording s admiss ible und er Rule 107 after defense attorn ey asked witness q ues tions about videotapes )

. The State also argued at t rial that the video was admissible as a prior consistent statement

. Id. R.
801 (e) (1)(B) (classifying statement as not hearsay when it “ is consistent with the declarant ’ s9 testimony and is offered to rebut an express or implied charge that the declarant rec ently
fabricated it or acted from a rece nt improper influence or motive in so testifying ” ). Assuming w ithout deciding that the video contained i nad missible hearsay , we

conc lude that any error in admitting the video was not r ev ers ible error because it d id not affe ct Johnson ’ s substantial rights

. See T ex . R. A pp . P. 44.2(b) (establishing that , for

non - constitutional error s , “[a]ny other error, defect, irregularity, or variance that does not affect substantial rights must be dis re ga r ded ” ) ; Prince v. S tate , 574 S.W.3d 561, 573 (Tex. App.

— Houston [ 1 st Dist.] 2019, pet. ref’d) (concluding “ erroneous admission of hearsay evidence is not
constitutional error ” ). “ The erroneous admission of evidence becomes harmless error if other
evid en ce provi ng the same f act is properly admitted elsewhere, or the evi d ence comes in elsewhere without objection. ” Prince , 574 S.W.3d at 575; see also Brooks v. State , 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) ( c oncluding that “ a ny error in admitting the [ hea rsay] evidence

was harm less in lig ht of other properly admitted e vidence proving the same fact ” ). “ I n situations where a video recording is improperly admitted, yet the recording is cumulative of the vic tim ’ s properly admitted live testimony on the s am e i ssue, courts often disr egard the error
. ” Land

v. State , 291 S.W

. 3d 23, 29 (Tex. App.

— Texarkana 2009, pet. ref’d )

. H ere , the contents o f the admitted interview video were cumulative of the trial testimony already present ed. Specifically, in the i nt erv iew v ideo Amy told Lo ma s about making an outcry to her mother on me et

- the

- teacher night . Amy also told Lomas that about t wice a week
for about three years , J ohnson would come into her room at night when he believed she was asleep and would remove her o ver night underwear an d tou ch her “ private area ” with hi s fingers

on bo th “ the outside and inside ” and would also touch her there with his mouth . She also explained that Johnson would place her hand on an object that she could not identify but that she10 d e s cri bed a s cylind rical and slimy like a tongue with no b ones and that h ad half of a metal ring in
it. During the interview Amy drew a picture of the ring she was describing

. She also
demonstrated to Lomas how Johnson had touched her with his fingers and mout h u si ng dolls.
She a ls o explained that her mother did not believe her . Amy also stated that prior to her
interview her mother had told her that if Amy chose to say that she had lie d about her outcry that it would only be considered a white lie

. Amy also ex pl ained that altho ug h her brother was also being abused by Johns on , her brother did not believe her

. Amy also explained to Lomas her understanding of wha t a lie and a truth is and told Lomas she wa s telling the truth.
T he contents of the recor ded i nte rv iew regarding th e outcry alle gations were cumulative to the comb in ed testimony of Amy and Lomas . Furth er, Amy ’ s mother testified that
she did not origina lly believe Amy, and Lomas t estified that Amy ’ s brother did not believe Amy. Thus, A m y ’ s record e d st ateme nts t hat her m other a nd brother did not believe her were als o cumulative of other testimony. Addition ally, Amy ’ s brother also testified at trial that he had also
been sexually abused by Jo hnson , making Amy ’ s video statement about her brother bein g ab used
als o cumulativ e. Thus , we conclu de that to the extent the ad mission of the video was error, it was
harmless error. See Dunn v. State , 125 S.W.3d 610, 615

– 16 (Tex. App.

— Texarkana 2003, no pet.) ( concluding there was no harm in erroneous admission of v id eotaped intervie w s alth ough they we re a pproximately one hour lo ng and “ [i]n no manne r can they either be considered unpersuasive or brief , ” because victim s testified concerning same evidence )

. We overrule
Johnson ’ s third issue.11 CON CLUSION
Becau se we overrule his firs t and third issue s an d cannot reach his second issue , we affirm the t rial court ’ s judgment of convic tion.

__________________________________________ Gis ela D. Trian a , Justice
Before Chi ef Jus tice Byrne , Justices Tri ana and Theofanis
A ffirme d
F iled: March 2 8, 2024
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